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Nvet

SMCs for TDIU rating 3 yrs ago

Question

Hello,

I received a TDIU rating for Depression in 2015. In addition, I had 40% for my back, 30% Migraines, and 10% allergies. I was not considered for SMCs. Any advice on how to proceed to get SMCs and back pay? Thanks

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8 hours ago, Nvet said:

Could you provide the link for the thread for the CUE template so that I may type mine?


There us a whole forum called - CUE Clear and Unmistakable Error

Thread - CUE claim template 


Thread - Tracked item for RMC medical Records????  CUE template is on page 4

ASKNOD.org also has a whole section on CUE's

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Posted (edited)

Also I have considerable info here on CUE-

this might help- but I believe my SMC CUE template is here somewhere too:

1998 decision - an award under 1151 DIC

The award clearly noted my dead husband's 100% P & T for SC PTSD, and then noted his residuals from a catastrophic stroke (1151), that added up to 80%.

My so called vet rep at the time , told me that since 1151 claims were different he saw nothing I could appeal.

The 1151 award resulted from a FTCA settlement (wrongful death) and that horrible ordeal had burned me out .I wanted to be done with the VA.  But

I re opened my claim for direct SC death in 2003 and that  1998 award still bothered me.I filed CUE this way:

The veteran obviously was eligible for SMC, due to his 100% P & T posthumous award for SC PTSD.

The veteran's stroke due to all evidence of record was also 100% P & T (1151) and satisfied the 100% plus 60% independent additional disability. The veteran was also housebound, by medical evidence that VA had.

Basically from my older PC notes this is what I filed:

I know the claim is here somewhere ( but maybe it is on the past hadit board instead-

 

VARO                                                                                      Date - 2004

 

To whom it may concern:

 

          This is a claim of CUE, under auspices of  38 USC, 5109A.

 

          I believe that VA erred in the lack of application of 38 USC 1114 regarding the above deceased veteran’s entitlement to SMC. Although M21-1,Part 6 provides that SMC will be considered and rated as it is an inferred issue for any claim with SMC potential, VA failed to consider a retroactive award of  SMC in adjudicating the veteran’s Section 1151 , which I re-opened after his death.

 

          The VARO failed to apply VA case law and regulations and failed to consider the deceased veteran properly for accrued Special Monthly Compensation, to my detriment as a surviving spouse of the veteran ((Rodney F. Simmons, date of death October 14, 1994 )and I am still eligible for accrued benefits.

 

The established VA case law and regulations that VA broke are found within:

 

M21-1 Erratum Part IV Change 113 under 3.09 and 3.10. (enclosed) Exhibit A

 

Also within General Counsel Precedent Opinion # 30-97 (enclosed)Exhibit B

 

I have also enclosed an excerpt from the Veterans benefits Manual, from NVLSP in their 2003 Edition. Exhibit C

1998 Erroneous 1151 award (DIC Wrongful death)       Exhibit D

 

( My note here----- The new VBM is so heavy (2,000 pages)I cannot put it on my printer to copy their statement, it is in every VBM, but it makes the point that SMC is mandated by law in every case where it is warranted)

Check the M21-1 excerpt as well -I do not believe it has been altered since that last Change.But check M21-1MR to make sure you have the right excerpt to enclose.)

 

 

          The veteran had 100% P & T SC for PTSD, 1997 decision , EED 1991 and in addition to that he was 100% P & T under 1151 for the stroke that VA caused. The stroke ratings are erroneous, and will be part of an additional CUE, but they add up to 80% on the enclosed rating sheet.

 

          It is a Clear and Unmistakable error for VA to have disregarded his SMC eligibility in your 1998 decision. He was not only 100% P & T for the stroke,by medical evidence but the point is he had the 100% P & T SC PTSD rating plus the additional independent 1151 80% rating, and was also Housebound by all medical evidence available.

 

          Your clear and unmistakable error obviously had a detrimental effect to me, the claimant, as an accrued award was not properly adjudicated and prepared.The award should be SMC S posthumously from August 9, 1992 to October 14, 1994.

(That basically is the SMC CUE- you sound like you have the same type of CUE.)

Filed 2004, never went to BVA, awarded in 2012 under Nehmer decision for AO IHD. Actually they awarded both HB and 100% plus 60 but only one payment.

My last CUE was awarded in 3 weeks.There was no way I was going to wait 8 years again for them to learn how to read. Nehmer put my AO IHD claim into a different VARO , and luckily,recently  the VARO sent my pending CUEs to another VARO. I had been aggressively fighting over some phones calls I got from my RO, I think there were 4 in total from the director and some VSO. The director wanted me to buy a ridiculous statement she kept making.And I think , based on the packet I just got, that they threw away some of my evidence.That's OK ,I am used to my RO doing that, and  I have copies and also a contact for a Neuro who years ago prepared a C & P exam, and suddenly 7 pages of it turned up, that never came with my original records request....

The exam and its results were done in 1993 and this neuro still works for the VA. I need to contact this doctor because my RO director said was husband had been cured of the 100% stroke when he died.The death certificate, autopsy, Voc Rehab, SSA,AO settlement fund, NYSDHE and VA itself had already declared him 100% P & T, yet she says he was T only and not P-I wonder how many widows whose husband's had 100&% P & T for ten continuous years got that same BS from the director of the Buffalo VARO and their DIC claims were erroneously denied.?????

 

 

 

 

 

 

 

Edited by Berta
added more

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you can write out your CUE like Ms berta did here   it don't need to be on a CUE Filling form   as long as they can read it  so don't hurt to type it out and also  always use black ink  or dark pencil when you write or fill out anything you send to the VA.

This is to insure its copied over good and placed in the records  C-File

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Posted (edited)

You also might want to throw in Bradley V Peake as well:

https://community.hadit.com/topic/70502-smc-s-and-bradley-vs-peake/

Unfortunately I have based my opinion , that this is a CUE, based solely on what you have stated here.

The basis of  this type of CUE is that SMC S is an inferred issue, and that it was not' considered 'at all by VA, which is different than being denied for SMC S.

"Not considered" means they VA did not even mention SMC at all.

I bring this up because , since October 2018 I did something I said I would never do again- A vet had a horrific FTCA situation on line at many new outlets and was desperately trying to find others who had FTCA situations with the VA.

I contacted his lawyer, and the lawyer said he would call me back to discuss the issue..

It was the most egregious Violation of VA case law I have ever seen.The lawyer however never called me back but the veteran did get in touch with me---long story , lots of work, lots of time wasted......yesterday his new Bill was posted on the net, I have a similar Bill with the H VAC, these bills are for any veteran or survivor of a veteran,who has received a FTCA settlement or 1151 award, to get proper NPDB notification from the VA.That is the only way future VA negligence and malpractice can stop, from the same doctors, etc, who do not get reported. I asked him 3 times if he got a 1151 award and he somehow never answered until not to long ago-but when I finally got a better picture of what happened,I began to withdraw my help-and started dealing with a vet org guy who understood the case--but did not understand my legal point of view-

I found out yesterday, in a new news article,  that what the veteran had told me, as to the small payment he got, for the malpractice was not at all a small payment. I have no idea why he didn't tell me the truth, because I had reported this incident to the GAO.It follows what their last GAO report on NPDB shows.

It still remains as the worst violation of any veteran's rights I have seen yet.

But I learned a lesson AGAIN. The documented facts of a case are everything. When we hear what VA said ,it means nothing- because it is their own documented  words that hold their reasons for every decision.

I sent out FOIAs to the OGC to get the true facts of the case but probably will not ever get them.

I believe very much that those who post here are telling us the facts as they know it.

But again I started to opine on the situation Nvet stated, but we have not seen the decision, so I might be all wrong on the CUE I perceive.

Nvet- can you scan and attach the decision that did not consider SMC? Cover your C file # name, prior to scanning it.

If I am not here, others will help-

 

 

 

Edited by Berta

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Posted (edited)

Here's  another approach to SMC errors (attached). I just filed it yesterday. I don't consider  failure to award SMC  a CUE. It's a pending claim awarded when the evidence supports it. As the CAVC said in Bradley and Buie both, you do not have to file for it as you would a claim.

10182 extra pgs PRELIM.pdf

Edited by asknod
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